| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.177/21 Smt. Anuradha Vats Wife of Shri Dharam Pal Vats Resident of House No. F-18 Palika Niwas, Lodhi Colony Lodhi Road, New Delhi-110003. Shri Dharampal Vats S/o Late Shri tara Chand Vats Resident of House No. F-18 Palika Niwas, Lodhi Colony Lodhi Road, New Delhi-110003. .…Complainants VERSUS M/s Panchsheel Buildtech Pvt. Ltd. Regd. Off., G-124, Shop No. 5 Dilshad Colony, Delhi-110092. Through Managing Director/ Authorised Representative (Email: CS@PANCHSHEELGROUP.COM) Corporate Office, H-169, Sector-63 NOIDA-201301, Distt. Gautam Budha Nagar (UP). ….Opposite Party Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Present: Adv. Arjit Gaur proxy counsel along with complainant. Present: Adv. Sargam proxy counsel for Adv. Sanjeev Arora for OP ORDER Date of Institution:09.06.2021 Date of Order :21.08.2024 President: Ms. Monika A Srivastava Complainant has filed the present complaint seeking the following reliefs:- - Letter of offer of possession be declared as illegal, inoperative and void;
- Tax invoice dated 05.03.2020 and further demands raised by OP be declared as null and void;
- Direct the OP to obtain OC/CC for the residential project “Panchsheel Pinnacle (Greens)” situated at Greater NOIDA, UP;
- Compensation of Rs.8,40,196/- with pendente lite and future interest @12% on the paid amount of Rs.28,00,654/-;
- Refund of Rs.2,78,078/- with interest @12% towards pre-EMI deducted by the bank from February 2020 to April 2021;
- Pendente lite interest @12% per annum from the date of filing of present complaint and future pre-EMI to be deducted by OP w.e.f. May 2021;
- Rs.10,00,000/- as compensation towards mental harassment and agony;
- Cost of litigation and sum of Rs.21,875 and
- Provide revised TDS certificate towards TDS deducted for the period October 2019 to February 2020 as well as income tax paid by complainant No.2.
- It is the case of the complainant that OP lured the complainants to book an apartment by offering interest subvention whereby OP assured to bear the interest applicable on the home loan for the period starting from the date of allotment to the date of possession i.e. pre-EMI charges levied by bank.
- It is stated that complainants applied for two bed room flat under the subvention scheme (10:80:10) in the project at “Panchsheel Pinnacle (Greens)” situated at Greater NOIDA, UP and paid booking amount of Rs.3,26,919/- to the OP. The balance 80% amount was to be financed by the Bank and interest levied on pre-EMI was to be borne by the OP. In this regard, an agreement dated 14.09.2016 was entered into between the parties and the cost of the apartment was fixed as Rs.32,62,950/-. Copy of the agreement is annexed as annexure-3.
- It is further stated that accordingly complainants applied for housing loan of Rs.28,00,000/- and in order to assist the complainant in availing the home loan, OP issued letter dated 13.10.2016 to the bank granting permission to mortgage the flat in question. Loan agreement dated 24.10.2016 was executed between the complainants and the bank and a tripartite agreement dated 13.10.2016 was executed between the complainants, OP and the bank. Copy of the letter permitting mortgage is annexed as annexure C-4, copy of the tripartite agreement is annexed as annexure C-6 and loan agreement is annexed as C-7.
- As per Clause 3 of the tripartite Agreement dated 13.10.2016 OP was to make all payments to the bank up to the period 31.08.2017. OP also issued a letter dated 13.10.2016 that as per the scheme offered by them, complainants were not required to pay any pre-EMI to the bank. Further as per the said letter that in case, delay in possession beyond 31.08.2017, OP shall continue to discharge its payment obligations of pre-EMI under the subvention scheme till offer of possession. Copy of the letter issued by OP dated 13.10.2016 is annexed as annexure C-8.
- Accordingly, the bank disbursed the payments to the OP as and when demands were raised by OP in terms of the agreement. In this manner from 24.10.2016 till 27.07.2018 after deducting pre-EMI of Rs.1,10,361/-, sum of Rs. Rs.23,88,575/-was disbursed to OP. It is further stated that from August 2018 to September 2019 OP paid a pre-EMI amount of Rs.2,63,603/- directly to bank.
- It is further stated that vide mail dated 26.09.2019, OP communicated to the complainants that as per new guidelines issued by National Housing Company Bank, in respect of subvention scheme, the builders were no longer to pay pre-EMI directly to the bank/financial institutions, instead it is allottee/borrower who would have to pay pre-EMI to the bank/financial institutions. However, the OP assured to reimburse the amounts paid by the complainants as pre-EMI to the bank. Consequently, since October, 2019, bank has been deducting pre-EMI directly from the account of complainant-2. Copy of the email dated 26.09.2019 is annexed as annexure C-9 and statement of account showing monthly deduction of pre-EMI is annexed as annexure C-10.
- It is further stated vide its mail dated 02.11.2019 that in terms of 194 (A) of Income Tax act 1961, OP shall treat the repayment of interest subvention i.e. pre-EMI as income of the complainants and as such it shall refund pre-EMI to complainants after deducting TDS. The said email is annexed as annexure C-11. OP then refunded pre-EMI amount of Rs.68,971/- from October 2019 to January 2020 after deducting TDS to the complainants. Copy of the TDS Certificates from 01.10.2019 to 31.03.2020 is annexed as annexure C-12 (colly).
- It is the case of the complainants that OP has refunded the pre-EMI amounts after wrongly declaring it as income of complainants and after deducting TDS of Rs.9,985/-. Consequently, complainant-2 also had to pay income tax of Rs.11,890/- on the amounts declared by OP as his income. In total, a sum of Rs.21,875/- was charged as income due to wrong declaration of the refund amount as income. It is the case of the complainant that OP has wrongly/illegally shown the TDS as Rs.1921/- for the month of February 2020 when it did not refund/pay the pre-EMI amount to the complainants for February 2020. Complete ledger account qua the flat of the complainants is annexed as annexure C-13.
- It is further stated as per clause 17 of the Agreement dated 14.09.2016, OP was required to deliver possession to the flat in 24 months from the date of allotment i.e. 14.09.2016 however, it has failed to offer possession.
- It is further stated that in order to avoid payment/refund of pre-EMI, OP fraudulently issued a letter of offer of possession dated 02.03.2020 and also demanded balance outstanding amount of Rs.7,05,337/- from the complainants as per the tax invoice dated 05.03.2020. It is stated that the said letter offering possession by the OP is illegal and not valid since the same has been offered without obtaining Occupation Certification (OC)/Completion Certificate (CC). Letter of offer of possession dated 02.03.2020 is annexed as annexure C-14.
- It is further stated that the complainant objected to the offer of possession and stated that the offer of possession is not treated as valid unless CC/OC is issued by the requisite authority. Complainants then sent letter dated 23.03.2020, emails dated 22.03.2020 and 11.04.2020 and also called upon the OP to provide the copy of OC and also raised a demand for payment/refund of pre-EMI amounting to Rs.76,436/- for the months from February 2020 till May 2020. Copy of these mails are annexed as annexure C-17, C-18 and C-19. In their reply, sent by email dated 10.07.2020 OP admitted that OC/CC was not yet issued by the competent authority. Copy of the email is annexed as annexure C-20 to which the complainant replied vide email dated 11.07.2020 annexed as annexure C-21.
- It is the case of the complainant that since the OP is not in position to offer the legal or valid possession in the eyes of law, the complainant cannot be forced to take over possession of the apartment/flat of which there is no OC. Therefore, OP is not absolved from its liability to pay/refund pre-EMI to the complainants till it obtained OC/CC. It is stated that OP has stopped paying the pre-EMI since 2020 and therefore is breach of agreement by not paying pre-EMI not offering possession within two years from the date of allotment.
- It is stated that in order to harass the complainants and to illegally extract money from them, OP has been issuing threatening email dated 28.05.2020 and 31.07.2020 raising illegal demands. In these mails, the quantum of interest levied upon the complainants is increasing as the OP continues to treat the complainants in default of payment whereas their offer of possession is illegal. It is stated that being in default, OP has no right to levy interest upon the complainants for non-payment. Copy of the said emails are annexed as annexure C-22 and C-23.
- It is stated that till date complainants have paid a sum of Rs.28,00,654/- to the OP and the OP has demanded a balance amount of Rs.7,05,337/- which is payable on completion and is to be actually paid after OP receives OC or CC.
- It is stated that there is gross negligence and deficiency in service on the part of the OP causing financial loss as well as mental harassment to the complainants as they have not been given the possession of the flat causing financial loss and mental harassment to the complainants.
- In their reply, OP has not denied that the complainant has booked a unit but has stated that possession has been offered to the complainant to execute the agreement of sale and take possession of the unit in question. It is stated that it is the complainant who has defaulted and delayed the payment towards the said unit due to which OP had to send several reminders demanding Rs.7,05,337/- plus interest. In this regard, OP has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter Chandrani Vs. Kamalrani (1993) 1 SCC 519. It is stated that parties are bound by the conditions of the contract and the compensation which the OP has to pay is restricted to the compensation stipulated in Builder Buyer Agreement. It is also stated that time for delivery of the unit was not the essence of the buyer’s agreement executed between the parties.
- It is stated that as per the allotment letter dated 14.09.2016, offer of unit would be given within 48+6 months from the date of booking or sanction of plan whichever is later subject to the receipt of entire basic price, extra charges, residential charges etc.
- It is further stated that complainant was a defaulter and delayed payments towards the said unit due to which OP sent reminders dated 05.03.2020, 31.07.2020 and 03.09.2021 to clear the remaining instalments towards payment of the unit. Copy of reminders is annexed as annexure-A.
- It is further stated that OP has applied for OC on 11.09.2019 and as per RERA Notification No./8208/UPRERA dated 16.09.2019 deemed approval is granted. The said notification is annexed as annexure-B. It is further stated that as per the said Notification RERA is directing the builders to hand over possession to the respective buyers after execution of Agreement to Sell. Copy of the said order dated 13.04.2021 is annexed as annexure-C.
- It is further stated that on account of Covid-19 real estate sector has slowed down and it has taken time to come out of recession which has resulted in delay of the project. It is further stated that OP is not liable to pay any damages to the complainant as per clause of the Builder Buyer Agreement (BBA) if the reasons for delay in offering possession are beyond the control of the OP. It is further stated that complainant is not entitled to any interest and the compensation which the OP has to pay is stipulated in the BBA and parties are bound by the terms and conditions of the contract voluntarily entered into between the parties.
- It is further stated that OP has not charged any extra amount over the cost of the unit nor has given any wrong information or given any false promises as alleged by the complainant. It is further stated that construction of a building depends upon the timely payment by the customer and if the customer does not pay the instalment in time it is the customer who has defaulted in performing of his part. In this regard, OP is placing reliance on the judgment passed by Hon’ble NCDRC in DLF Southern Towns Pvt. Ltd. Vs. Dipu C. Seminlal and HUDA Vs. Raj Singh Rana.
- In their rejoinder, complainants have reiterated that OP has malafidely offered the possession without obtaining OC in order to get away from its contractual liability to pay subvention amount/pre-EMI interest as per agreement. It is further reiterated that the complainant has already paid 90% of the total cost of the unit and cannot be compelled to take possession without a valid OC. It is stated that the argument of the OP relating to delay because of Covid is unacceptable as the time agreed for completion of the unit was 13.08.2018. Complainant has placed reliance on the judgment passed by the Hon’ble Supreme Court in CA No.6239 of 2019 Wg. Cdr. Arifur Rahman Khan & Alia Sultana Vs. DLF Southern Homes Pvt. Ltd.. Complainant has again reiterated that they are not under any obligation to pay the demanded amounts to the OP as the offer of possession made by OP on 02.03.2020 was not valid and legal. Complainant also placed reliance on the judgment passed by Hon’ble NCDRC in Prashant Telkar and Vijeta Kalghtagi & 51 ors. Vs. ND Developers Pvt. Ltd. in CC No.3681/2017, judgment passed by Hon’ble Supreme Court in CA No.6044/2019 in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, judgment passed by Hon’ble NCDRC in CC no.763 of 2020 in Madhusudhan Reddy R. Sridhar Chowdary M & Suneetha M Vs. VDB Whitefield Development Pvt. Ltd., Value Designbuild Pvt. Ltd. and VDB Property Ventures Pvt. Ltd.
- It is further stated that residents who took possession of the flat on the false assurance of OP are still waiting for registration of their unit even though they have paid stamp duty towards registration. It is further stated that the unit lacks basic necessities as valid OC is required for applying water, sanitation or electricity connections.
- Both the complainants and the OP have filed their respective evidence affidavits and written arguments. This Commission has gone through the entire material on record. Complainant has placed various letters issued by them to the OP after offer of possession by the OP. Complainant has also placed on record email dated 10.07.2020 wherein it has been stated by the OP that OC is applied for. Complainant has placed on record email sent by OP dated 28.05.2020 seeking payment of demanded amount and another reminder dated 31.07.2020. Complainant has also placed on record copy of complaints made by other home buyers. Copy of the RTI along with its reply dated 16.12.2021 wherein it was stated that due to objections the OC would be provided once the dues raised by the authority are filed.
- On the other hand, OP has placed on record only one reminder sent to the complainant for payment of Rs.7,46,842/- as on 31.07.2020 wherein it is also mentioned that 18% interest will be leviable from the due till the date of payment.
- It is also seen that the allotment of the unit was under a subvention scheme wherein 10% of the booking amount of Rs.3,26,919/- was paid by the complainant 80% was paid by the bank. Cost of the unit is Rs.32,60,950/-. Though a loan agreement has been placed on record the vital terms are blank and only demand promissory report is found on record wherein the complainant had promise to pay to HDFC bank Rs.28,00,000/-. Complainant has also placed on record annexure C-8 which is a subvention scheme accepted by both the complainants as well as OP wherein it has been stated by OP “under this scheme we have made an exclusive offer for our esteemed customers wherein the customer need not to pay any EMI for the tenure fixed by the bank from whom the subvention scheme has been availed i.e. M/s HDFC Ltd. It may also be apprised to your goodself that in case any delay in possession beyond 31st August, 2017, the company shall continue to discharge its payment obligation of EMI under the subvention scheme till offer of possession”. “It may kindly be noted that on providing beyond this exclusive beneficial scheme where under no obligation to serve your goodself any penalty in case of any delay in possession……”.
- Complainant has also placed on record annexure C-9, an email dated 26.09. 2019 wherein the OP has informed the complainants that as per the NHB bank rule, builder will not pay customer EMI directly to bank and would rather the builder will pay the EMI to customer. Complainant has also placed on record Annexure C-14 mail dated 03.03.2020 wherein OP has offered the possession of the unit and is also seeking Rs.7,05,337/- vide invoice dated 05.03.2020 with a rebate of Rs.23,098/-.
The Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna AIR 2021 SC 437 has held The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D'Lima [Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation. …….. In a similar case, this Court in Wg. Cdr. Arifur Rahman Khan & Others v. DLF Southern Homes Pvt. Ltd., affirmed the view taken in Pioneer (supra), and held that the terms of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the timelines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer‘s Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service. …… The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks. Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them. The Hon’ble Supreme Court in Hyundai Motor India Ltd. Vs. Shailendra Bhatnagar [Civil Appeal No. 3001 of 2022 arising out of Petition for Special Leave to Appeal (Civil) No. 4881 of 2021] has held 15. If the reliefs granted in a consumer complaint fits any of the statutory provision contained in sub clause (1) of Section 14 of the Act, it would be well within the power and jurisdiction of the Forum to pass directions irrespective of the fact as to whether specifically certain reliefs have been claimed or not, provided that facts make out foundations for granting such reliefs. In any event, it is within the jurisdiction of the said forum to mould the reliefs claimed to do effective justice, provided the relief comes within the stipulation of Section 14(1) of the Act. - Though the complainant has not sought refund of the amount yet taking guidance from the above judgment, this Commission directs the OP to refund Rs. 28,00,654/- with interest @ 12% per annum from November 2019 when the last payment was made by the OP towards pre EMI, till realisation. OP is further directed to pay Rs.1,00,000/- as compensation on account of harassment caused to the complainants in not offering possession in the stipulated time and when offered it was without valid OC/CC.
Copy of the order be given to the parties as per rules. File be consigned to the record room. Order be uploaded on the website. | |
